Punjab-Haryana High Court
Nirmal Singh vs Mangal Singh And Ors. on 21 August, 2001
Equivalent citations: AIR2002P&H70, AIR 2002 PUNJAB AND HARYANA 70, (2001) 2 CURLJ(CCR) 491, (2002) 1 CIVILCOURTC 676, (2002) 3 LANDLR 351, (2002) 2 PUN LR 46, (2002) 1 RECCIVR 745, (2002) 3 ICC 252, (2002) 3 CURCC 106
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is defendant's appeal against the judgment and decree dated 24.9.1999 of District Judge, Kapurthala, whereby he dismissed his appeal and, thus, confirmed the judgment and decree dated 27.8.1996 of Civil Judge (Senior Division), Kapurthala, whereby he had decreed the plaintiff/respondents suit for possession by way of specific performance of agreement to sell dated 18.6.1993 in respect of land measuring 15 kanals 17 marlas on payment of a sum of Rs. 70,000/- (minus Rs. 50,000/- already paid as earnest money) and further decreed the suit for declaration to the effect that the decree dated 3.9.1994 passed ex pane in suit No. 259 of 9.6.1994 by Additional Senior Subordinate Judge, Kapurthala, was illegal, wrong, void and inoperative arid not binding on the plaintiffs and so also the sale deed executed by Smt. Charan Kaur in favour of Nirmal Singh defendant (appellant herein) and further for permanent injunction restraining Smt. Charan Kaur and Nirmal Singh defendant from alienating or transferring the suit land to anybody else except the plaintiffs, and suit for permanent injunction restraining the defendant from interfering in the possession of the plaintiffs over the suit land was dismissed.
2. The facts:-
Nirmal Singh filed suit for possession by way of specific performance of agreement to sell dated 5.6.1993 against Smt. Charan Kaur daughter of Bala Singh, widow of Mo-hinder Singh, resident of Village Nathu Chahal qua land measuring 15 kanals 17 marlas on payment of Rs.1,30,000/- minus Rs.24,000/- (paid as earnest money to her on 5.6.1993 at the time of the execution of agreement). It was suit No.259 of 9.6.1994 which was decreed ex pane on 3.9.1994 by Additional Senior Subordinate Judge, Kapurthala. In pursuance of that ex pane decree, sale deed was executed by Charan Kaur in favour of Nirmal Singh on 6.1.1995. Mangal Singh and Baldev Singh filed suit No.277 of 16.7.1993 for permanent injunction against Smt. Charan Kaur and Nirmal Singh restraining them from alienating or transferring land measuring 15 kanals 17 marlas as also from interfering in their possession of the said land and for specific performance of agreement to sell dated 18.6.1993 qua land measuring 15 kanals 17 marlas executed by Smt. Charan Kaur in their favour on payment of a sum of Rs.70,000/- minus Rs.50,000/- which was paid as earnest money at the time of execution of the agreement dated 18.6.1993 and, in the alternative, suit for recovery of Rs.70,000/- along with interest at the rate of 12 per cent per annum from the date of execution of agreement to sell dated 18.6.1993 till its realisation and also suit for declaration to the effect that decree dated 3.9.1994 passed ex parte in suit No.259 of 9.6.1994 by Additional Senior Sub Judge, Kapurthala and the sale deed executed by defendant No. 1 in favour of Nirmal Singh defendant in consequence thereof, was illegal, wrong, void and nullity and inoperative and are not binding upon them (Mangal Singh and Baldev Singh).
3. It is alleged in the plaint that Smt. Charan Kaur who was owner of land measuring 15 kanals 17 marlas had agreed to sell the same to them vide agreement to sell dated 18.6.1993 for a total sum of Rs. 70,000/-. Smt. Charan Kaur received a sum of Rs. 50,000/- as earnest money from them at the time of execution of the agreement to sell dated 18.6.1993. She undertook to execute sale deed in terms of that agreement on receipt of the remaining sale money on 30.11.1993. On 30.11.1993, the plaintiffs went to the office of the Sub-Registrar, remained present there with the aforesaid sale consideration and also the amount required for meeting the expense of stamp and registration and waited for the defendant so as to obtain sale deed from her on payment of the remaining sale money. Defendant Smt. Charan Kaur, however, did not turn up. They swore an affidavit and got it attested in this respect on 30-11.1993. They have always been ready and willing to perform their part of the contract viz. they have always been ready and willing to pay the remaining sum of Rs.20,000/- to Smt. Charan Kaur and to obtain sale deed from her, but it was Smt. Charan Kaur who ran away and defaulted. They approached Smt. Charan Kaur on 1.12.1993 and requested her to execute sale deed. She refused to do so. Plainyiffs were already in possession of the land in suit. Smt. Charan Kaur in connivance with Nirmal Singh defendant fabricated the agreement ante dating it to 5.6.1993 with a view to defeating the rights of the plaintiffs and obtained decree dated 3.9.1994 during the pendency of civil suit No. 277 of 16.7.1993 without implead-ing plaintiffs i.e. Mangal Singh and Baldev Singh as party to Suit No. 259 of 9.6.1994.
4. Smt. Charan Kaur defendant No.l contested the suit of the plaintiffs. It was denied that she ever agreed to sell the suit land to the plaintiffs. It was denied that she executed an agreement dated 18.6.1993 in favour of the plaintiffs. It was denied that she ever received Rs.50,000/- as earnest money. In fact, the plaintiffs were not in a position to pay such a heavy amount nor she ever received any such amount from them. She is the real aunt of the plaintiffs. She is an illiterate lady. She was taken in by the plaintiffs being their close relation, and they took her thumb impressions on some blank papers on the pretext that they were required for getting old-age pension for her. It was urged that it in the process plaintiffs had forged some agreement to sell she was not bound by it. Moreover, the market value of the land was not less than Rs.1,30,000/- during those days. It was further urged that, in fact, she had executed an agreement to sell the suit land to Nirmal Singh defendant vide agreement to sell dated 5.6.1993 for a total consideration of Rs.l,30,000/- out of which she had received Rs.24,000/- as earnest money. It was denied that the plaintiffs have been in possession of the land.
5. Nirmal Singh defendant No.2 contested the suit of the plaintiffs urging that Smt. Charan Kaur had agreed to sell the land to him vide agreement to sell dated 5.6.1993 for a total sum of Rs.1,30,000/- out of which she had received a sum of Rs.24,000/- from him as earnest money. When she failed to perform her part of the contract and execute sale deed in his favour pursuant to that agreement, he filed suit for specific performance against her, namely civil suit No.259 of 9.6.1994 which was decreed by Additional Senior Sub Judge, Kapurthala on 3.9.1994. Sale deed was executed on 6.1.1995 pursuant to that decree in his favour. In execution of the decree possession was also delivered to him through the process of the Court. It was denied that Smt. Charan Kaur ever executed any agreement to sell dated 18.6.1993 in favour of the plaintiffs. Smt. Charan Kaur is the real aunt of the plaintiffs. Plaintiffs maneuvered agreement dated 18.6.1993 in their favour in connivance with Smt. Charan Kaur. Agreement dated 18.6.1993 is fabricated and without consideration. It cannot effect the rights of Nirmal Singh in the suit land.
6. On the pleadings of the parties, the trial Court framed the following issues:
" I. Whether the defendant has executed an agreement to sell dated 18.6.1993 and received Rs. 50,000/- as earnest amount?OPP.
2. Whether the suit is not maintainable in the present form?OPD
3. Whether the plaintiff is entitled to the injunction as prayed for?OPP 3-A Whether the plaintiff had been ready and willing and is still ready and willing to perform his part of the contract?OPP 3-B Whether the plaintiff is entitled to the specific performance of the agreement to sell or to the alternative relief?OPP 3-C Whether the defendant executed an agreement of sale of the suit land on 5.6.1993 in favour of Nirmal Singh, if so its effect?OPD.
3-D What is the street of ex pane judgment and decree dated 3.9.1994 obtained by defendant No. 2 against defendant No. I regarding specific perfonnanceOPD 3-E Whether the agreement dated 18.6.1993 is void being opposed to public policy and is not enforceable in the Court of law?OPD
4. Relief."
7. At the conclusion of the trial of the suit, the plaintiffs suit was decreed by Civil Judge (Senior Division) Kapurthala vide order dated 27.8.1996. Defendant Nirmal Singh appealed to the District Judge Kapurthala against the decree dated 27.8.1996 of Civil Judge (Sr. Division) Kupurthala which was dismissed by learned Disirict Judge Kapurthala vide order dated 24.9.1999. Defendant is in further appeal before this Court.
8. I have heard the learned counsel for the appellant and the learned counsel for the respondents and with their assistance have gone through the record of this case.
9. In this case, then; are two agreements - one is dated 5.6.1993 which has been set up by Nirmal Singh appellant and another is dated 18.6.1993 which has been set up by Mangal Singh and Baldev Singh plaintiff-respondents. As per NirmaJ Singh, Charan Kaur agreed to sell land measuring 15 kanals 17 marlas in his favour for a sum of Rs. 1,30,000/- vide agreement to sell dated 5.6.1993. Vide this agreement she received Rs. 24,000/- as earnest money. She undertook to execute sale deed on or before 4.6.1994. As per Mangal Singh and Baldev Singh respondents/plaintiffs, Smt. Charan Kaur agreed to sell the land measuring 15 kanals 17 marlas vide agreement to sell dated 18.6.1993 for a sum of Rs. 70,000/-, out of which a sum of Rs. 20,000/- was paid as earnest money.
10. The question that arises for consideration is whether agreement dated 5.6.1993 was genuine and executed by Charan Kaur in favour of Nirmal Singh. If agreement dated 5.6.1993 was executed genuinely by Smt. Charan Kaur in favour of Nirmal Singh, then the question of Smt. Charan Kaur having executed agreement dated 18.6.1993 in favour of Mangal Singh and Baldev Singh would not arise. Agreement dated 18.6.1993 in favour of Mangal Singh and Baldev Singh will be rendered cypher catling for no action on it. It was submitted by the learned counsel for Nirmal Singh appellant that agreement dated 5.6.1993 was genuine and it was executed by Smt. Charan Kaur in his favour where through she undertook to sell the land measuring 15 kanals 17 marlas for a sum of Rs. 1,30,000/-, out of which he paid Rs. 24,000/- as earnest money. It was further submitted that this agreement was executed on 5.6.1993 and was not ante dated. It was again submitted by him that Smt. Charan Kaur is the real aunt of Mangal Singh and Baldev Singh. They got her thumb-impress ion on blank paper on the pretext that her old age pension case was to be prepared. Otherwise, she did not execute this agreement to sell dated 18.6.1993. It was submitted that there is no evidence regarding payment of Rs. 50,000/- as earnest money to Charan Kaur on the strength of agreement dated 18,6.1993. Smt. Charan Kaur did not appear before the Court to state that she did not execute this agreement dated 18.6.1993 and her thumb impressions had been obtained on blank paper on the pretext that her old age pension case was to be prepared and that she did not receive any earnest money of Rs. 50,000/-. It was submitted that Charcr, Kaur was the real aunt of the plaintiff-respondents. No weight can be given to this sub-
mission made by the learned counsel for the appellant-defendant Nirmal Singh as would appear here after. Baldev Singh P.W. 3, who is one of the plaintiffs, stated that an amount of Rs. 13,000/- was withdrawn by his father from Punjab National Bank, Kala Sangian and some amount was with them and the whole payment was paid in Tehsil Complex, Kapurthala and some amount had been borrowed from his relations. Rupees 20,000/- was taken by him from his sister Gurbax Kaur and the remaining amount of Rs. 17,000/- was with him as he had brought that amount with him while coming from the Unit (it may be mentioned here that Baldev Singh was in the Army). He, thus, stated that the amount of Rs. 50,000/- was duly paid to Smt. Charan Kaur. Statement of account exhibit P.W. 6/2 (Saving Bank Account No. 1349) in the name of Shri Charan Singh, who is father of Mangal Singh and Baldev Singh, shows that on 18.6.1993, Rs. 12,900/- had been withdrawn from this account of Charan Singh. A sum of Rs. 24,000/-was deposited in savings Bank Account No. 3558 of Punjab National Bank in the name of Charan Kaur defendant on 18.6.1993. Account opening form Exhibit P.W. 6/4 suggests that this account was opened by Smt. Charan Kaur and Kashmira Singh P.W. 2. This Kashmira Singh (P.W.2) is the marginal witness of agreement Exhibit P-l dated 18.6.1993. Smt. Charan Kaur is not the real aunt of Baldev Singh and Mangal Singh and she is their aunt being inhabitant of same village Nathu Chahal. Charan Kaur was already in receipt of old age pension. She was maintaining account No. 4539 in Punjab National Bank Branch in Village Sidhwan Dona. Shri Jeonson officer Punjab National Bank Branch of Village Sidhwan Dona, who appeared as P.W. 7, confirmed that the old age pension Account No. 4539 relates to the same woman Smt. Charan Kaur, wife of Mohinder Singh, of Village Khusropur. Agreement dated 18.6.1993 was scribed by a professional scribe Harbhajan Lal, Vasika Navis, Kapurthala who appeared as P.W. 1. It was entered by him in his register. He stated that Rs. 50,000/- was paid to Smt. Charan Kaur in his presence. It was attested by Surjit Singh Lamberdar and Kashmira Singh. They were also present when Rs. 50,000/- was paid to Smt. Charan Kaur. To the same effect is the statement of Shri Kashmira Singh P.W.2. Stamp on which agreement dated 18.6.1993 was scribed was sold by Dyal Singh (P.W. 8) on 18.6.1993. He stated that he sold the stamp to Smt. Charan Kaur, daughter of Bela Singh, resident of Village Nathu Chahal on 18.6.1993. He made entry No. 5853 dated 18.6.1993 in his stamp vending register. This entry was thumb- marked by Smt. Charan Kaur. There can, thus, be no manner of doubt that agreement dated 18.6.1993 was executed by Smt. Charan Kaur in favour of Mangal Singh and Baldev Singh whereby she agreed to sell land measuring 15 kanals 17 marlas for a sum of Rs. 70,000/- and Rs. 50,000/- was received by her as earnest money.
11. Smt. Charan Kaur undertook to sell land on or before 30.11.1993 to Mangal Singh and Baldev Singh.
12. So far as agreement dated 5.6.1993 in favour of Nirmal Singh is concerned, I do not see there is any ring of genuiness about this agreement. No wonder, agreement dated 5.6.1993 was ante dated as there is no material on the record wherewith to verify that this agreement was executed really on 5.6.1993. It was not scribed by a professional scribe. It was rather typed by some typist. Agreement dated 5.6.1993 was not entered by the typist in any register so that it could emerge whether this agreement was really executed on 5.6.1993. No stamp vendor was produced who could state about the date when this stamp was sold to Smt. Charan Kaur. It lay upon Nirmal Singh defendant to prove that agreement dated 5.6.1993 was genuine and it was genuinely executed on 5.6.1993 by Charan Kaur and further that there was no ante dating of this agreement. Nirmal Singh has failed to discharge this onus. He could discharge this onus by producing the typist who typed out this agreement. He could produce the stamp vendor who sold the stamp on which the agreement alleged to be dated 5.6.1993 was scribed.
13. Agreement dated 5.6.1993 was not a genuine agreement and it was ante dated with a view to defeat the rights of Mangal Singh and Baldev Singh respondents. If this agreement had been genuine, Charan Kaur could appear before the Sub-Registrar on 30.11.1993 and state that she was not bound to honour agreement dated 18.6.1993 as she was already under an agreement to sell this land to Nirmal Singh vide agreement dated 5.6.1993. Agreement dated 5.6.1993 was, thus, not genuine. It was ante dated afterwards with a view to defeat the rights of Mangal Singh and Baldev Singh.
14. Nirmal Singh filed suit for possession through specific performance (Civil Suit No. 259 of 9.6.1994). In that suit, he impleaded only Smt. Charan Kaur. He should have impleaded Mangal Singh and Baldev Singh so that it could be determined whether agreement dated 5.6.1993 was genuine or agreement dated 18.6.1993 was genuine. Nirmal Singh got an ex parte decree dated 3.9.1994, i.e. when the suit filed by Mangal Singh and Baldev Singh for specific performance was pending.
15. Both the Courts below have concurrently found in favour of agreement dated 18.6.1993 as against agreement dated 5.6.1993 on consideration of evidence by them. Consideration of evidence by them cannot be said to be unjust. There can be no appraisal of evidence for the third time by this court in Regular Second Appeal.
16. Defendant Nirmal Singh could succeed only if he proved that he was holding a prior agreement dated 5.6.1993 and it was in pursuance of that agreement that he got decree for possession through specific performance.
17. In view of what has been stated above, this appeal is found to be denude of merit. It is accordingly dismissed with no order as to costs.